Terms and Conditions
These terms and conditions (“Terms and Conditions”) are the only terms that govern the Services (defined below) provided by Sidekick Web Studio, LLC (“Sidekick”) to the customer to whom the Statement of Work (defined below) is addressed (“you” or “Client”).
Please read these Terms and Conditions carefully. Your use of any Services provided by Sidekick is conditioned on your acceptance of and compliance with these Terms and Conditions. By placing an order for the Services from Sidekick and/or using the Services you agree to be bound by these Terms and Conditions. Sidekick reserves the right, at its sole discretion, to modify or replace these Terms and Conditions at any time. Contact Sidekick if you have any questions about these Terms and Conditions.
1.) Scope. These Terms and Conditions will apply to any services (“Services”) provided by Sidekick to the Client, as more specifically defined in an accompanying statement of work, proposal, invoice, email, order form or other similar document provided by Sidekick (a “Statement of Work”). The Statement of Work and these Terms and Conditions (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral with respect to the subject matter of this Agreement. In the event of any conflict between these Terms and Conditions and the Statement of Work, these Terms and Conditions shall govern unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
a.) All websites and applications are created a 4 breakpoints, per industry standard. This includes Desktop: 992px and larger; Tablet: Between 768px and 991px; Mobile landscape: between 767px and 480px; and Mobile portrait: under 479px. Development for screen sizes larger or smaller than these breakpoints will incur additional cost.
b.) Any timelines outlined in the proposal are best case scenario and not concrete. Development schedules may be extended due to a variety of unforseen circumstances.
a.) In consideration of the provision of the Services, Client shall pay the fees set forth in the Statement of Work (the “Fees”). Fees for the Services will be invoiced in accordance with the Statement of Work and are due within thirty (30) days of such invoice, unless otherwise specified. Deposits, if any, are non-refundable. Any recurring Fees identified in the Statement of Work, including, without limitation, hosting fees, require authorization of automatic payment by ACH or credit card.
b.) Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall reimburse Sidekick for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Sidekick does not waive by the exercise of any rights hereunder), Sidekick shall be entitled to suspend performance of any Services (including, without limitation, hosting of any websites) if Client fails to pay any amounts when due hereunder.
c.) All Fees are exclusive of any and all applicable taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes associated with the Services, other than Sidekick’s income taxes.
3.) Site Transfer & Termination.
a.) Site Transfer. In the event a Client transfers a website away from a Sidekick development platform account (including but not limited to Webflow, Shopify, ModX, etc.) this Agreement is effectively terminated and Sidekick relinquishes all responsibilities associated with website issues moving forward.
b.) Client Termination. Client may terminate, with or without reason, any Service under this Agreement upon not less than thirty (30) days’ prior written notice to Sidekick, provided, however, that at least five (5) business days prior to the date of such termination, Client shall pay to Sidekick each of the following:
(i) All amounts payable by Client for Services provided through the date of termination;
(ii) All payments made as of the date of such termination by Sidekick to one or more third parties that are the responsibility of the Client as set forth in the Statement of Work;
(iii) All amounts that Sidekick has committed to pay to one or more third parties in accordance with the Statement of Work and, despite reasonable efforts, is unable to terminate such commitments.
c.) Sidekick Termination. Sidekick may terminate this Agreement, in whole or in part, with immediate effect upon written notice, if Client (i) fails to pay any amount when due under this Agreement, or (ii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Client understands that any such termination may cause business disruption and Sidekick will, in no way, be held liable for consequences of such disruption. Further, Sidekick may terminate, with or without reason, this Agreement, in whole or in part, upon not less than thirty (30) days’ prior written notice to Client.
d.) Effect of Termination. In the event of a termination of Services, Client shall be solely responsible for transitioning all Services to another service provider. Sidekick, at its sole discretion and at Client’s sole cost, may assist Client in such transition and Client understands such transition services will be billed at cost to Client at the prevailing rates of Sidekick.
e.) Surviving Terms. The provisions with the following titles, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: “Effect of Termination,” “Surviving Term,” “Intellectual Property Rights,” “Non-Disclosure,” “Limitation of Warranties and Remedies,” “Indemnification,” “Notices,” and “Miscellaneous.”
4.) Third Party Platforms and Services. Sidekick may from time to time in its discretion engage third parties to perform any Services provided under this Agreement. Client acknowledges and agrees that it shall be responsible for any costs associated with any update, upgrade or other adaptation or modification to the Services, and any Work Product delivered thereunder, due to the acts, or failure to act, of any third-party web browser, cloud services, and apps including but not limited to Webflow, Shopify, Amazon Website Services, ModX or any other third party services.
5.) Intellectual Property Rights.
a.) Work Product. Except for any Sidekick Background Content (defined below) and Third-Party Materials (defined below), Client is and will be the sole and exclusive owner of all right, title, and interest in and to the website, code and other documentation, work product and materials related thereto that Sidekick creates or provides to Client in connection with the Services hereunder (the “Work Product”), including all Intellectual Property Rights therein.
b.) Client Content. Any and all artwork, logos, graphics, video, text, data and other materials supplied by Client to Sidekick in connection with this Agreement, as well as, in the case of web site design services, the domain name or names assigned to the web site, if any, shall remain the sole and exclusive property of Client (the “Client Content”). No copyrights, patents, trademarks or other intellectual property rights shall be transferred from Client to Sidekick with respect to any of the Client Content except that Client hereby grants, to Sidekick a worldwide, non-exclusive, fully paid-up license to use, copy, modify, enhance, create derivative works of and otherwise use the Client Content in any manner reasonably necessary to perform the Services.
c.) Sidekick Background Content. Sidekick and its licensors are, and will remain, the sole and exclusive owners of all right, title, and interest in and to the audio, visual and audiovisual content and any other information in any form or media, including documents, data, know-how, ideas, specifications, and software code, in which Sidekick owns all Intellectual Property Rights and that (a) were developed or otherwise acquired by Sidekick prior to the Agreement or (b) are generally applicable to or useable by any of Sidekick’s other customers or for Sidekick’s business in general regardless of when developed (excluding any Client Content that is Confidential Information) (collectively, the “Sidekick Background Content”), including all Intellectual Property Rights therein. Sidekick hereby grants to Client a worldwide, non-exclusive, fully paid-up license to use, copy, modify, enhance, create derivative works of and otherwise use the Sidekick Background Content in any manner reasonably necessary to use or otherwise exploit any Work Product created hereunder. Sidekick reserves all rights in the Sidekick Background Content not expressly granted to Client herein.
d.) Third-Party Materials. The Services may be in support of and/or the Work Product may contain certain data, technology, hardware or software components or other materials that are not proprietary to Sidekick (collectively, the “Third-Party Materials”). Except as otherwise provided in the Statement of Work, Sidekick shall secure all necessary rights, licenses, and consents necessary for Client to use all Third-Party Materials as incorporated in or otherwise used in conjunction with the Work Product for the term of this Agreement; provided that, Client agrees that it will be responsible for its compliance with the terms and conditions of such licenses or consents for use of such Third-Party Materials. All right, title, and interest in and to Third-Party Materials will remain with the respective owners thereof, subject to the licenses or sublicenses granted to Client pursuant to or in accordance with this Agreement.
e.) Intellectual Property Rights Defined. For purposes of this Agreement, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection.
6.) Sidekick Support. Client may submit requests for support via Sidekick’s website, by telephone or by email, and Sidekick will respond to Client requests for support within twenty-four (24) hours Monday through Friday. Such response will include a time frame, and any applicable costs associated therewith, in which Sidekick will be able to complete such requested support.
7.) Change Orders.
a.) If either party wishes to change the scope of performance of the Services, including, without limitation, electing a new credit card processing provider, implementing an upgrade to the web browser or other platform, or any other change to the Statement of Work, it shall submit details of the requested change to the other party in writing. Sidekick shall, within a reasonable time after such request, provide a written estimate to Client of: (i) the additional time required to implement the change, (ii) the variations to the Fees for the services arising from the change; and (iii) any other impact the change might have on the performance of this Agreement. Client acknowledges and agrees that any change to the Statement of Work may result in additional Fees.
b.) Promptly after receipt of the written estimate, the parties shall negotiate and agree on terms of such change (a “Change Order”).
c.) Notwithstanding Section 7(a) and Section 7(b), Sidekick may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the Fees or any performance dates set forth in the Statement of Work.
8.) Client’s Compliance with Laws. Client acknowledges and agrees that it is responsible for compliance with all applicable laws relating to Client’s business, industry or trade. Client shall provide to Sidekick any disclaimers or other legal requirements necessary for incorporation into any Work Product prior to delivery of such Work Product from Sidekick.
9.) Non-disclosure. Each Party acknowledges that it may receive Confidential Information of the other party. “Confidential Information” means business, technical, and financial information, whether in tangible form or communicated orally, of a party, which such party communicates or delivers to the other party in connection with the Services. Notwithstanding any provision in this Agreement to the contrary, “Confidential Information” shall not include any document or information which: (a) is or becomes generally known or available to the public; (b) was properly known or otherwise available to the receiving party prior to the receiving party’s receipt thereof; (c) was properly disclosed by a third party to the receiving party without restriction or breach of any agreement, license, law, rule or regulation applicable to such third party; or (d) is independently developed by the receiving party without use of any Confidential Information. A party receiving Confidential Information shall not disclose any Confidential Information of the other party to any third party nor use any Confidential Information for its benefit or for the benefit of any third party, except as expressly required to deliver Services. The receiving party shall take reasonable precautions to maintain the confidentiality of all Confidential Information, and in no case shall take less than commercially reasonable precautions. Upon request, for any reason, each party, at the election of the disclosing party, shall immediately return or destroy all Confidential Information of the other party within its possession or control.
10.) Limitation of Warranties and Remedies.
a.) EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE STATEMENT OF WORK, IF ANY, SIDEKICK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE WHETHER EXPRESS, STATUTORY OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO: IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, QUALITY OF SERVICE AND ANY AND ALL WARRANTIES REGARDING THE PRIVACY OF ANY OF CLIENT’S DATA, INCLUDING ON ANY WEBSITE PROVIDED HEREUNDER. ALL SERVICES, WORK PRODUCT AND OTHER MATERIALS ARE PROVIDED BY SIDEKICK ON AN “AS IS” “WHERE IS” BASIS. SIDEKICK DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OR ACCURACY OF ANY ADVICE, ANALYSIS OR REPORTS IT PRODUCES PURSUANT TO THE SERVICES.
b.) NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, SIDEKICK SHALL HAVE NO OBLIGATION TO CLIENT FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, LOST PROFITS, EXEMPLARY DAMAGES, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY SERVICES, WORK PRODUCT OR OTHER MATERIALS PROVIDED BY SIDEKICK. IN NO EVENT SHALL SIDEKICK'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SIDEKICK PURSUANT TO THE APPLICABLE STATEMENT OF WORK.
c.) NOTWITHSTANDING ANY OTHER PROVISION HEREIN, SIDEKICK MAKES NO WARRANTIES AND SHALL HAVE NO RESPONSIBILITY WHATSOEVER, INCLUDING INDEMNITY, AS TO THIRD-PARTY MATERIALS.
a.) Client Indemnification. Client shall indemnify, defend and hold harmless Sidekick and its officers, directors, members, managers, employees, agents, and representatives for any and all losses, costs, damages, liabilities, claims, injuries, and expenses (including, without limitation, reasonable attorneys’ fees) for matters asserted by any third party arising out of or relating to (i) the Client Content, or (ii) the actions or omissions of Client with respect to the Services.
b.) Sidekick Indemnification. Sidekick shall indemnify, defend and hold harmless Client and its officers, directors, employees, agents, members, managers, and representatives for any and all losses, costs, damages, liabilities, claims, injuries, and expenses (including, without limitation, reasonable attorneys’ fees) for matters asserted by any third party arising from a claim that the Services, or any Work Product, infringes or misappropriates such third party’s US intellectual property rights, The foregoing obligation does not apply to the extent that the alleged infringement arises from (i) Third-Party Materials or Client Materials, or (ii) relates to Client’s misuse or modification of the Services in breach of this Agreement or in violation of any usage guidelines provided by Sidekick. If such a claim is made or appears possible, Client agrees to permit Sidekick, at Sidekick's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If Sidekick determines that neither alternative is reasonably available, Sidekick may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client.
c.) Sole Remedy. THIS SECTION 11 SETS FORTH CLIENT'S SOLE REMEDIES AND SIDEKICK’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND WORK PRODUCT OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12.) Force Majeure. No default, delay or failure to perform the Services on the part of Sidekick shall be considered a breach of this Agreement to the extent such default, failure or delay is caused by or results from acts of third parties or other circumstances beyond the reasonable control of Sidekick including, without limitation, acts, or the failure to act, of the web browser provider, cloud service provider, Amazon Web Services, or other third party service providers; acts of God; governmental actions; or telecommunication breakdown or power outages.
13.) Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Statement of Work or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
14.) Miscellaneous. The relationship between the parties is that of independent contractors. Client may not assign or delegate any of its rights or obligations under this Agreement without Sidekick’s prior written consent. Sidekick may assign this Agreement, or any part thereof, upon written notice to Client. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall be governed by and construed in accordance with, the laws of the State of Colorado, without giving effect to procedural rules or legal principles regarding conflicts of laws. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party. A party’s failure to exercise any right or enforce any terms of this Agreement will not be deemed a waiver or release of any such right, term, or condition, but the same will remain at all times in effect. In the event any suit or other action is commenced to construe or enforce any provision of this Agreement, the prevailing party shall be awarded reasonable attorneys’ fees and court costs, in addition to all other relief to which such party shall be entitled.